The historical facts in this case are essentially undisputed. The issue to be decided is whether Fair Acres Geriatric Center, a county operated intermediate care nursing facility violated the Act when it denied admission to plaintiff, who is afflicted with Alzheimer's disease. Contending that there was a violation, plaintiff offered the testimony of three psychiatrists, none of whom had ever set foot in Fair Acres and had little or no knowledge of its population, staff or resources, who opined that she could be managed at Fair Acres. The Admissions Committee of Fair Acres,
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after observing the plaintiff, consulting members of her family and her attending nurses, reviewing the medical records of her confinement at the Wills Eye Hospital Geriatric Psychiatric Institute (Wills), and after consulting a psychiatrist of their own choice, concluded that it could not meet her needs.

At the close of the plaintiff's case and at the close of all the evidence, defendant moved for judgment as a matter of law. The court reserved decision on these motions and submitted the issue to a jury. The jury found in favor of the plaintiff. Following the verdict, defendant renewed its motion for judgment as a matter of law. In the alternative, defendant asked for a new trial.

Thereafter, an application for admission to Fair Acres was made and as of September 16, 1992, the Admissions Committee at Fair Acres determined that plaintiff was not then suitable for admission, but placed her application on "hold" pending further information as to her condition. No further information was forthcoming as of October 5, 1992 and; accordingly, the admissions committee denied her application. The staff psychiatrist at Wills, Dr. Kim, agreed that plaintiff was not suitable for nursing home care at the time of the September 16, 1992 application. Later, in the middle of October, 1992, he concluded that she was suitable for such placement despite the fact that the progress notes do not show any significant change in her overall behavioral pattern. The timing of Dr. Kim's change of opinion coincided with the exhaustion of Mrs. Wagner's hospitalization benefits.
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The plaintiff was again evaluated by the Fair Acres Admissions Committee on October 28, 1992. In the meantime, plaintiff had been turned down at several other nursing homes because of the behavioral problems. (N.T. 9/21/93 pp. 35,37 Deft. Ex. 2, p. 10 Wills' social worker's note).

The Admissions Committee, basically on the recommendation of its psychiatric consultant, Dr. Diwan, determined that the admission of plaintiff was not yet appropriate.

The Wills records also reflect that during her stay plaintiff received antidepressants and neuroleptics including increasing dosages by injection of the anesthetic inapsine, a drug that none of the other psychiatrists ever heard of for use on a geriatric patient. There was also a record of frequent use at Wills of a "quiet room" where a disruptive patient is confined so as not to distract or upset other patients. Fair Acres does not have a quiet room. All of its rooms have two or more residents in them.

Plaintiff was evaluated for a fourth time on January 6, 1993. The Wills record shows that her condition had not stabilized. She continued to exhibit the same agitated, assaultive and combative behavior.
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The Admissions Committee's psychiatric consultant noted that plaintiff was still agitated, confused and irritable as late as December 29, 1992, but recommended a further evaluation in six to eight weeks.

On February 17, 1993, there was a fifth evaluation. Although plaintiff's behavioral problems improved slightly, the Wills records show that she continued to have episodes of combativeness, agitation and assaultiveness,
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the same pattern of behavior that caused her transfer from Dowden to Wills in the first place. The records also reflect that she continued to receive 2.5 milligram of inaspine on an "as needed" basis throughout February 1993. Accordingly, Mrs. Wagner was denied admission to Fair Acres at that time.

There was no further updating of plaintiff's condition and there was no further request for admission to Fair Acres until Mrs. Wagner's counsel, in a telephone call, demanded that she be admitted, (N.T. 9/21/93, p. 75). When informed that Fair Acres could not meet her needs,
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he threatened to file a lawsuit. Counsel made no effort to provide updated information concerning plaintiff's condition. (N.T. 9/21/93, p. 77).

On April 12, 1993, almost two months after her last evaluation by Fair Acres, the plaintiff was admitted to a special care unit for Alzheimer's patients at an Easton, Pennsylvania nursing facility, located approximately 85 miles from her home. One of the first reports emanating from the Easton facility showed that plaintiff, daily or more frequently, was physically abusive, "others were bit, shoved, scratched . . ." and engaged in other "socially inappropriate or disruptive behavior." (N.T. 9/21/93, p. 57, Ex. D 12, p. 4).

Defendant does not dispute that Alzheimer's disease rendered Mrs. Wagner a handicapped person within the meaning of the statute and that a person with Alzheimer's cannot be denied admission on that basis alone. Indeed, as noted above, approximately 60 percent of defendant's population suffer from Alzheimer's or some other form of dementia. Nor is there any dispute that the Fair Acres' staff has the expertise to handle the medical aspects of such patients and that they are even prepared to handle infrequent or occasional outbursts of severe agitation, aggressiveness or assaultive conduct.
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But what distinguishes Mrs. Wagner is her behavioral pattern documented in the Wills records demonstrating a continuous course of aggressive, combative and socially inappropriate conduct which frequently required special monitoring and attention as well as increasingly larger doses of drugs including an anesthetic to calm her down.

The parties agree that, on occasion, nursing home residents have to be transferred to a psychiatric hospital in order to try to stabilize them and reduce the frequency of the periods of agitation, which is the precise reason Mrs. Wagner was at Wills. Indeed, the record shows that Fair Acres would transfer 25 to 30 patients per year for that reason.

It is also undisputed that such changes in environment are traumatic and have a deleterious effect on an Alzheimer's patient because it adds to the patient's confusion and exacerbates her condition. (See Gottlieb, N.T. 9/20/93, p. 42, Etemad, N.T. 9/21/93, p. 60). Accordingly, a person who exhibits such behavior within days prior to the Admissions Committee review, ought not to be admitted because the probability is that such person will have to be transferred or returned to a psychiatric facility within a short period of time, thus causing further aggravation of her condition. (See Etemad N.T. 9/21/93, p. 60).

Dr. Gottlieb testified that plaintiff would be suitable for Fair Acres because as he read the record of her stay at Wills, the periods of agitation were infrequent or occasional. (See plaintiff's brief p. 7) He conceded; nevertheless, that "to the extent she became uncontrollable, she would be a candidate for an acute short-term period of inpatient care at a psychiatric facility (2 to 4 weeks) for stabilization." id. With respect to the use of Inaspine, he testified that it is not commonly used with patients with behavioral difficulty, and in Mrs. Wagner's case, it was being used empirically to come up with some way of creating longer periods of calm because Wills had not been successful with other drugs. (N.T. 9/20/93, p. 73). The Wills records show that for five days in a row within ten days immediately preceding the February evaluation by Fair Acres, plaintiff had been injected with Inaspine and, consistent with Dr. Gottlieb's testimony, the Fair Acres Director of Admissions noted that continued use of Inaspine was a "tip-off" that the treating physician had not found the proper medicine for stabilizing her and was using Inaspine to "knock her out." (N.T. 9/21/93, pp. 114, 192).

It is clear from the opening paragraph of plaintiff's pre-trial memorandum that her § 504 cause of action is predicated upon the fact that she is a victim of Alzheimer's disease and that she was denied admission to Fair Acres "because of behavioral symptoms of agitation which were caused by and typical of her disability." Similarly, on page 4 of the pre-trial memorandum, it is stated "Mrs. Wagner's Alzheimer's Disease constituted a disability and a handicap." Indeed, all of the evidence offered by plaintiff was designed to show that Mrs. Wagner was the typical Alzheimer patient and, therefore, she should be admitted to Fair Acres.
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But, as the Supreme Court pointed out in an employment context "An otherwise qualified person is one who can meet all of a program's requirements in spite of his handicap." (Emphasis added). Southwestern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979). Cf. Doe v. New York University, 666 F.2d 761 (2d Cir. 1981). In the case at bar, plaintiff sought admission to Fair Acres because of her handicap and not in spite of her handicap, and thus she is not an "otherwise qualified" handicapped individual who has been denied a benefit solely by reason of her handicap. Gieseking v. Schafer, 672 F. Supp. 1249 (W.D. Mo. 1987). Flowers v. Webb, 575 F. Supp. 1450, 1456 (E.D. N.Y. 1983).

Further, as the Court noted in Johnson By Johnson v. Thompson, 971 F.2d 1487 (10th Cir. 1992) at page 1493: "Section 504, by its very terms does not cover discrimination among similarly handicapped persons. The word solely provides the key: the discrimination must result from the handicap and from the handicap alone. If others with the same handicap do not suffer the discrimination, then the discrimination does not result 'solely by reason of [the] handicap.'" (citations omitted - emphasis in original).

Recognizing the force of this series of cases, plaintiff in a post argument submission, seems to have made a 180 degree turn with respect to her theory of § 504 liability. She now identifies her handicap as "the aggressive behavioral traits" caused by Alzheimer's disease. (Plaintiff's supplemental memorandum of law p. 8). Thus, contrary to the position of her experts and consistent with the view of the Fair Acres Admissions Committee, it was "the aggressive behavior" that set her apart from the other residents at Fair Acres.

In either event, however, "where the handicapping condition is related to the condition to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was discriminatory". United States v. University Hospital, 729 F.2d 144, 157 (2d Cir. 1984). In Johnson v. Thompson, 971 F.2d 1487 (10th Cir. 1992), the Court held that infants were not "otherwise qualified" for treatment for spina bifida because the treatment sought would be wholly unnecessary in the absence of the handicapping condition. 971 F.2d at 1494.

So too, in the absence of the Alzheimer's Disease, Mrs. Wagner would not need the nursing home care she sought at Fair Acres. Clearly, she sought a benefit because of her Alzheimer's and not in spite of it.

Moreover, having now conceded that it was Mrs. Wagner's "aggressive behavioral traits" that set her apart from the Fair Acres population, the issue then becomes whether § 504 requires an institution whose primary mission is the care of nine hundred elderly and physically impaired individuals to take on residents with psychiatric symptoms manifested by sustained episodes of agitation, combativeness and assaultiveness. The law does not require a hospital or other recipient of federal assistance to offer specialized treatment for particular handicaps. Doe v. Colautti, 592 F.2d 704, 708 (3rd Cir. 1979). 45 C.F.R. § 84.12(a). Mrs. Wagner was not "otherwise qualified" for admission to Fair Acres because it was not the function of Fair Acres to provide psychiatric services for persons with disruptive psychotic disorders, particularly those persons whose condition has not been stabilized and whose symptoms remain uncontrolled. "The policy decision not to commingle the elderly and physically handicapped with the mentally retarded in domiciliary facilities does not constitute 504 discrimination . . . a state agency must be permitted to 'strike a balance' between the particular interests of a handicapped person and a desire to defend the integrity of its programs." Dempsey v. Ladd, 840 F.2d 638, 641 (9th Cir. 1987).

Thus, whether the handicap is defined as Alzheimer's or the effects of Alzheimer's, it is not a violation of § 504 to differentiate among applicants on the basis of the attributes of the handicap, Anderson v. University of Wisconsin, 841 F.2d 737, 740 (7th Cir. 1988), Knutzen v. Nelson, 617 F. Supp. 977 (D.C. Colo. 1985), the severity of the handicap, Johnson By Johnson v. Thompson, 971 F.2d 1487, 1493 (10th Cir. 1992), or the level of the handicap, Willa v. Bradley, 1992 U.S. Dist. LEXIS 19030, N.D. Ill.

The fact that plaintiff's two experts
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and her treating physician opined that Fair Acres could manage her case is not material.
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Nor is it a case of Fair Acres making a reasonable accommodation. It has been plaintiff's position all along that reasonable accommodations were not necessary, only that minor adjustments in the daily routine of Fair Acres would be required when Mrs. Wagner became agitated. Plaintiff made no demand for accommodations which were not already available at Fair Acres.
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The decision not to admit Mrs. Wagner was a medical treatment decision made by Fair Acres medical and health care professionals and medical treatment decisions are generally immune from scrutiny under Section 504. Bowen v. American Hospital Assoc., 476 U.S. 610, 106 S. Ct. 2101, 90 L. Ed. 2d 584 (1986). In U.S. v. University Hospital, 729 F.2d 144 (2nd Cir. 1984), it was held that treatment decisions involving a child with multiple handicaps do not come within the purview of § 504.

After a thorough investigation and review of the Wills records, Fair Acres made a reasoned medical decision that it could not properly treat Mrs. Wagner's symptoms as they then existed. "Considerable judicial deference must be paid to the evaluation made by the institution itself, absent proof that its standards and its application of them serve no purpose other than to deny [a benefit] to handicapped persons." Doe v. New York University, 666 F.2d at 776. Whether Fair Acres' decision "was correct measured by 'objective' standards" is not the test. "What is relevant is that [Fair Acres] acted on its good faith belief about plaintiff's condition based on "the Wills' records and Dr. Diwan's advice. Pesterfield v. Tennessee Valley Authority, 941 F.2d 437, 443. Even if Fair Acres erred in its analysis of the Wills' records, that error does not constitute a violation of § 504. Anderson v. University of Wisconsin, 841 F.2d at 741. Here, the plaintiff does not dispute that Fair Acres acted in good faith when it denied her admission. (N.T. 9/22/93 p. 77).

"The Rehabilitation Act forbids discrimination based on stereotypes about a handicap but it does not forbid decisions based on the actual attributes of the handicap". Anderson v. University of Wisconsin, 841 F.2d at 740.

I conclude that as a matter of law, plaintiff has failed to make out a case for relief under § 504 of the Act.

Accordingly, defendant's motion for judgment as a matter of law under Fed.R.Civ.P. 50 will be granted.

B. Alternative Motion for a New Trial

Fed.R.Civ.P. 50(c) instructs the trial court to conditionally rule on a motion for a new trial in the event the judgment as a matter of law is reversed or vacated.

Defendant's alternative motion for a new trial is grounded on the following: 1) the failure of the court to give proper judicial deference to the judgment of the Fair Acres Administrators, that is, the failure of the court to make appropriate findings before submitting the case to the jury; 2) the failure of the court to give a proper jury instruction regarding the deference to which the Fair Acres Administrators are entitled; 3) the Court erred in admitting, over defendant's objection, the testimony of Dr. Etemad regarding plaintiff's condition after March 3, 1993; 4) the refusal of the Court to instruct the jury that when evaluating the alleged discrimination on the part of Fair Acres, they are not to consider any evidence that relates to plaintiff's condition after March 3, 1993; 5) the verdict is against the weight of the evidence.

Taking a cue from language in Strathie v. Dept. of Trans., 716 F.2d at 231, defendant's first point suggests that the court should have made an explicit finding that there exists a factual basis in the record which reasonably demonstrates that accommodating the plaintiff would require either a modification of the essential nature of the program at Fair Acres or imposes an undue burden on Fair Acres.

Apparently Fair Acres views this finding as a prerequisite or prelude to a jury instruction concerning the deference to be paid to the judgment of the institution administrator. While I agree that the record in this case supports such a finding, I do not see the necessity for the court to make a finding in a matter tried to a jury.

This brings us to the second ground. The Court sustained plaintiff's objection to defendant's proposed point for charge #6 which requested the Court to instruct the jury that some measure of deference be given to the judgment of the administrators of Fair Acres in rejecting plaintiff's application. I am now persuaded that this constituted prejudicial error.

During the course of the trial plaintiff's counsel produced a paper which appeared to be a copy of a statement itemizing certain medical costs. The witness to whom it was presented (Dr. Kim) had never seen it before, had no knowledge of its source and could not otherwise identify or authenticate it. Plaintiff contends that this paper purports to show the cost of keeping Mrs. Wagner in Wills. But the paper itself stated that no funds were due from the patient and that the bill had been paid in full.

This effort was the extent of plaintiff's attempt to prove monetary damages. The court refused to permit the admission of this paper as proof of damages and, therefore, the issue of compensatory damages was not submitted to the jury. This ruling was unquestionably correct.

Even assuming that compensatory damages are available in nonintentional
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discrimination cases under § 504, (See Wood v. Spring Hill College, 978 F.2d 1214 (11th Cir. 1992), Sabo v. O'Bannon, 586 F. Supp. 1132, 1137 (E.D.PA 1984.) plaintiff's damage claim must fall because of total lack of proof. Failure to prove a claim is not grounds for a new trial.

In the event a new trial is granted on defendant's motion, I would not limit it to damages because the calculation of the damages will depend on the point in time at which defendant became liable - an issue which is hotly disputed and which was not resolved by the first jury.

Plaintiff's motion for a new trial limited to damages will be denied.
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ORDER

AND NOW, this 15th day of FEBRUARY, 1994, upon consideration of the post-trial motions filed by the parties for the reasons stated in the Memorandum of Decision filed herewith, it is

ORDERED

1. Defendant's motion for judgment as a matter of law under Fed.R.Civ.P. 50 is GRANTED and judgment is hereby entered in favor of the defendant and against the plaintiff.

2. Defendant's alternative motion for a new trial is CONDITIONALLY GRANTED in the event the judgment as a matter of law in favor of the defendant is vacated or reversed.

3. Plaintiff's motion for a new trial limited to damages is DENIED.

BY THE COURT

JOSEPH L. McGLYNN, JR. J.

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